Northern Ireland Surveyors acting as expert witnesses...Surveyors acting as expert witnesses:...

RICS Professional Guidance, England, Wales and Northern Ireland

Surveyors acting as expert witnessesClient guide

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RICS client guide

Surveyors acting as expertwitnesses: client guideRICS Practice statement, England, Wales and Northern Ireland

4th edition

Important noteReaders of this document are referred also to the copyright notice on page 2 of this publication.

Crown copyright material is reproduced under the Open Government Licence v2.0 for public sector information: www.nationalarchives.gov.uk/doc/open-government-licence/

Published by the Royal Institution of Chartered Surveyors (RICS) Parliament SquareLondonSW1P 3AD

www.rics.orgNo responsibility for loss or damage caused to any person acting or refraining from action as a result of the material included in this publication can be accepted by the authors or RICS.

Produced by the RICS Dispute Resolution Professional Group.

First published 1997: second edition of practice statement 2000: second edition of practice statement and guidance note (combined) 2001: third edition of practice statement and guidance note (combined) 2008.

© Royal Institution of Chartered Surveyors (RICS) April 2014. Copyright inall or part of this publication rests with RICS. No part of this work may bereproduced or used in any form or by any means including graphic,electronic, or mechanical, including photocopying, recording, taping orWeb distribution, without the written permission of the Royal Institution ofChartered Surveyors or in line with the rules of an existing license.

Typeset in Great Britain by Columns Design XML Ltd, Reading, Berks

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Acknowledgments

This document references the Civil Procedure Rules (CPR) in afew places to ensure consistency between this guidance orpractice note and the CPR.

RICS wishes to express its sincere thanks to the following:

Foreword

The Right Hon the Lord Neuberger of Abbotsbury

Technical author

Liam Holder FRICS (Navigant Consulting), Chairman of theworking group

Working Group

+ John Baker FRICS (Baker Property Consultants)

+ Sean Brannigan QC, 4 (Pump Court Chambers)

+ Graham Chase FRICS (Chase and Partners), RICSPresident 2006–07

+ Peter Collie, Barrister, FRICS, (Fenwick Elliott)

+ Johnny Dunford (RICS)

+ Duncan Preston FRICS (Aston Rose Chartered Surveyors)

+ Mark Thomas FRICS (Thomas Sands Consulting Ltd)

RICS also wishes to thank all those who have contributed toprevious versions of this publication.

Surveyors acting as expert witnesses: client guide

ii RICS Practice statement, England, Wales and Northern Ireland Effective from 2 July 2014

Contents

Acknowledgments............................................................................................................................................ ii

Copyright notice............................................................................................................................................... 2

RICS practice statements................................................................................................................................ 3

Preamble .......................................................................................................................................................... 4

Principal message............................................................................................................................................ 4

PS 1 Application of practice statement .......................................................................................................... 5

PS 2 Duty in providing expert evidence.......................................................................................................... 5

PS 3 Acting as an expert witness and instructions ........................................................................................ 6

PS 4 Inspections.............................................................................................................................................. 7

PS 5 Reports and oral evidence ..................................................................................................................... 7

PS 6 Amending the contents of written reports ............................................................................................. 8

PS 7 Agreeing facts and resolving differences ............................................................................................... 9

PS 8 Single Joint Expert (SJE) ........................................................................................................................ 9

PS 9 Advocacy and expert witness roles ....................................................................................................... 10

PS 10 Conditional fees .................................................................................................................................... 11

Appendix: Definitions ....................................................................................................................................... 12

Effective from 2 July 2014 RICS Practice statement, England, Wales and Northern Ireland 1

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Copyright notice

Copyright in this practice statement (PS) and guidancenote (GN) belongs to the Royal Institution of CharteredSurveyors (RICS). Copyright does not apply to theStatement of Truth specified at PS 5.4(p). This practicestatement is also published in the form of a clientguide, a copy of which can be supplied by the expertwitness to his/her prospective client. This client guidemay be provided without copyright permission;however, the expert witness must make clear to theprospective client that his/her copy is for his/her useonly, and that any reproduction of the guide for the useof a third party would breach RICS copyright, asspecified in PS 3.4(b).

The wording of the Statement of Truth and declarations(PS 5.4(p)) may be used in expert witness reportswithout the need to seek prior consent from RICS.

An acknowledgment of RICS copyright ownershipshould appear on any extract from, or copy of, thepractice statement and guidance note that isreproduced, save when the Statement of Truth (PS5.4(p)(i)) or other declarations (PS 5.4(p)(ii)) are beingused in expert witness reports.

Reproduction (other than as specified above) orrepublishing in any format requires express writtenpermission from RICS. A request for such permission,or any other enquiry related to copyright, may beaddressed to:

RICS Publishing and Content ServicesParliament SquareLondon SW1P 3ADUnited Kingdom

2 RICS Practice statement, England, Wales and Northern Ireland Effective from 2 July 2014


Surveyors acting as expert witnesses: practicestatement

RICS practice statements

This is a practice statement. It is the duty of everymember to comply with relevant practice statements,and take account of other guidance produced by RICSin a particular area of expertise, to maintain highprofessional standards. There may be disciplinaryconsequences for a failure to comply with a practicestatement.

Members should also note that when an allegation ofprofessional negligence is made against a surveyor, thecourt is likely to take account of any relevant practicestatement published by RICS in deciding whether ornot the surveyor acted with reasonable competence.Failure to comply with practice statements may,accordingly, lead to a finding of negligence against asurveyor.

In the opinion of RICS, a member conforming to therequirements of this practice statement should have atleast a partial defence to an allegation of negligence.

Where members depart from the practices set out inthis practice statement, they should do so only forgood reason and the client must be informed in writingof the fact of and the reasons for the departure. Theremay be legal and disciplinary consequences fordeparting from this practice statement.

It is the member’s responsibility to be aware ofchanges in case law and legislation since the date ofpublication.

Document status defined

RICS produce a range of professional guidance andstandards products. These have been defined in thetable below. This document is a practice statement.

Type of document Definition StatusStandardInternational Standard An international high level principle based standard

developed in collaboration with other relevantbodies

Mandatory

Practice StatementRICS practice statement Document that provides members with mandatory

requirements under Rule 4 of the Rules of Conductfor members

Mandatory

GuidanceRICS Code of Practice Document approved by RICS, and endorsed by

another professional body/ stakeholder thatprovides users with recommendations for acceptedgood practice as followed by conscientiouspractitioners

Mandatory or recommendedgood practice (will beconfirmed in the documentitself)

RICS Guidance Note (GN) Document that provides users withrecommendations for accepted good practice asfollowed by competent and conscientiouspractitioners

Recommended goodpractice

RICS Information Paper (IP) Practice based information that provides users withthe latest information and/or research

Information and/orexplanatory commentary


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Preamble

While in general this text is gender neutral, onoccasions where masculine terms only are used (suchas in legislation quotes) these should be taken as alsoreferring to the feminine (for example ‘she’, ‘her’), andto ‘they’ or ‘it’ (in the case of a corporate body), as thecontext so requires.

References to the singular also include the plural andvice versa where the context so requires. Unlessotherwise specified, references to ‘you’, ‘surveyor’ or to‘expert witness surveyor’ are to members of RICS ofany class of membership, save for Honorary Members.References to ‘PS’ denote ‘practice statement’ andthose to ‘GN’ denote ‘guidance note’.

For the purposes of this practice statement andguidance note, the generic expression ‘tribunal’ meansany body whose function it is to determine disputes.This therefore includes:

+ courts and tribunals (including but not limited toLands Tribunals and Agricultural Land Tribunals;Leasehold Valuation Tribunals; Residential PropertyTribunals; Valuation Tribunals)

+ arbitrators/arbiters or arbitral panels/tribunals

+ adjudicators

+ committees (including Rent AssessmentCommittees and Valuation Appeal Committees)

+ inspectors, commissioners and reporters (forexample, in planning proceedings, includinginquiries, hearings, examinations in public –independent panels; independent examination andproceedings of the Infrastructure PlanningCommission, and Planning and Water AppealsCommissions); and

+ independent experts.

Principal message

As a surveyor actively involved in a dispute that maycome before a tribunal, you may find yourself carryingout one or more roles, including that of an expertwitness. Your primary duty as an expert witness is notto a client but to the tribunal where your expert witnessreport and evidence given:

+ must be, and must be seen to be, yourindependent and unbiased product, and fall withinyour expertise, experience and knowledge

+ must state the main facts and assumptions it isbased upon, and not omit material facts that mightbe relevant to your conclusions; and

+ must be impartial and uninfluenced by thoseinstructing or paying you to give the evidence.

It is imperative that you do not stray from the duties ofan expert witness by acting in a partial, misleading oruntruthful manner. In those instances when you mayadopt a dual role of surveyor-advocate and expertwitness it is also imperative that you differentiate at alltimes clearly between the two roles (see PS 9Advocacy and expert witness roles).

The practice statement and guidance note are basedupon the law and practice relating to expert witnessesin England, Wales and Northern Ireland, but are alsodesigned to provide a template for global applicability.For example, a separate supplement to the practicestatement and guidance note may be considered byScottish members in relation to expert witnessprocedures to which Scottish law and conventionsapply. It will be necessary for surveyors to discuss withthe client’s lawyers the applicability of both theprocedures and principles in the practice statementand guidance note, as the local law and proceduralrules may require the surveyor to take a differentapproach.



PS 1 Application of practice statement

1.1 The start date of application of this practicestatement is three months after its publication date.This practice statement applies to any RICS member(usually described hereafter as ‘the expert witness’ or‘you’) who provides expert evidence, whether oral orwritten, to the proceedings of any tribunal subject tothe rules of that specific tribunal and its jurisdictions.

1.2 This practice statement does not apply to youwhen acting in any capacity other than as an expertwitness (for example, in the capacity of a witness offact). In cases where you are using your professionalexperience, knowledge and expertise in the role ofsurveyor-advocate, the RICS practice statement andguidance note Surveyors acting as advocates will alsoapply.

1.3 You give expert evidence when you draw uponyour professional experience, knowledge and expertiseto provide evidence in the form of your independentprofessional opinion to a tribunal. Such evidence isdistinct from:

(a) advice given for the purpose other than atribunal’s proceedings

(b) evidence of fact; and

(c) advocacy of a case.

1.4 Since this practice statement only applies to theprovision of expert evidence by you when appointed asan expert witness, it does not apply for the purpose ofassisting your client to decide whether to initiate ordefend proceedings to be heard by a tribunal.However, where you are giving advice in writing to yourclient and consider that you may be required to giveexpert evidence in such proceedings, you must adviseyour client in writing if your advice or investigationswould fall short of that necessary to enable expertevidence complying with this practice statement to beprovided.

1.5 Where you act as an expert witness and considerthat there are special circumstances which render itinappropriate or impractical for the assignment to beundertaken wholly in accordance with this practicestatement, the fact of, and reasons for, the departuremust as soon as reasonably practical be given inwriting to your client, and must also be contained inany expert witness report prepared; alternatively youmay wish to decline instructions or withdraw from acase.

Where you depart from the practice statement you maybe required to justify to RICS the reasons for thedeparture. RICS is entitled to take disciplinary

measures if it is not satisfied with the reasons givenand/or the manner in which the departure has beennotified or evidenced. In the event of litigation, a courtmay require you to explain why you decided to act asyou did.

PS 2 Duty in providing expert evidence

2.1 Your overriding duty as an expert witness is to thetribunal to which the expert evidence is given. Thisduty overrides any contractual duty to your client. Yourduty to the tribunal is to set out the facts fully and givetruthful, impartial and independent opinions, coveringall relevant matters, whether or not they favour yourclient. This applies irrespective of whether or not theevidence is given either under oath or affirmation.

2.2 Special care must be taken to ensure that expertevidence is not biased towards those who areresponsible for instructing or paying you.

2.3 Opinions should not be exaggerated or seek toobscure alternative views or other schools of thought,but should instead recognise and, where appropriate,address them. The duty endures for the wholeassignment.

2.4 As an expert witness you must be able to showthat you have full knowledge of the duties relating tothe role of an expert witness when giving evidence.

2.5 You are entitled to accept instructions from youremployer and to give expert evidence on behalf of thatemployer. Prior to accepting such instructions, youmust satisfy yourself that your employer understandsthat your primary duty in giving evidence is to thetribunal and that this may mean that your evidencemay conflict with your employer’s view of the matter orthe way in which your employer would prefer to seematters put.

2.6 Where you are acting, or have previously acted, fora party on a matter (in the course of, for instance,negotiations) and the matter requires, or may in thefuture require, the giving of expert evidence, you mustthroughout consider, and then decide, whether you canfully satisfy the overriding duty to the tribunal toprovide evidence that is truthful, independent, impartial,and complete as to coverage of relevant matters(please refer to the RICS guidance note Conflicts ofinterest).

2.7 As an expert witness, you must not malign theprofessional competence of another expert witness. Ifyou feel that expressing doubts about the competenceof another expert witness is both justified and


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necessary in order for you to present a full picture tothe tribunal, you may bring to its attention where youconsider the experience, knowledge and expertise ofanother expert witness is lacking, inappropriate orexaggerated, or where you consider evidence isbiased, giving full reasons in support of yourcomments.

PS 3 Acting as an expert witness andinstructions

3.1 Expert witnesses should confirm without delaywhether or not they accept instructions.

3.2 You must only act as an expert witness and giveexpert evidence where you have:

(a) the ability to act impartially in the assignment

(b) the experience, knowledge and expertiseappropriate for the assignment; and

(c) the resources to complete the assignment withinthe required timescales and to the requiredstandard.

3.3 If you have any doubt as to whether you shouldaccept instructions to act as an expert witness(because, for example, you are required to undertakework that falls outside your expertise, unrealisticdeadlines are imposed, instructions are insufficientlyclear, or where the position of the case does not reflectyour own professional opinion or places you in aposition of conflict), you must advise your prospectiveclient accordingly. If you consider that the tribunalmight attach less or no weight to your evidence as aresult of particular circumstances, you have a duty toadvise your prospective client accordingly.

3.4 Prior to accepting instructions to act as an expertwitness, you must:

(a) Advise your prospective client in writing that thispractice statement and the rules of the relevanttribunal will apply.

(b) Offer to supply a copy of the practice statementin the form of the client guide to your prospectiveclient. This client guide may be provided to yourprospective client without copyright permission;however, you must make clear to the prospectiveclient that his/her copy is for his/her use only,and that any reproduction of the guide for theuse of a third party would breach RICS copyright.

(c) Notify your prospective client that your firm’sComplaints Handling Procedure (CHP) (if the firmis an RICS-regulated firm) will not apply to yourengagement as expert witness, because yourduty is to the tribunal.

(d) Ensure without delay that you advise yourprospective client in writing of the nature andscope of your obligations under this practicestatement and guidance note and the relevanttribunal that might apply, and of your generalobligations, in particular that the overriding dutyof the expert witness in giving evidence is to thetribunal.

(e) Ensure that there is a written record, held by youand sent to (or received from) your prospectiveclient, as to the matters on which expertevidence is required, whether such record isupon your initiative or those instructing you.

(f) Confirm in writing if you propose that any part ofthe assignment is likely to be undertaken by aperson other than yourself.

(g) Carry out a check to satisfy yourself that noconflict of interest arises (see also PS 2.5–2.6). Ifyou have any doubt whatsoever in this respect,any potential or actual conflict must be reportedto those offering instructions as soon as itbecomes apparent. If you consider that thetribunal might attach less or no weight to yourevidence as a result of such circumstances, youmust advise your prospective client accordingly.Refer to the RICS guidance note Conflicts ofinterest.

3.5 Any potential or actual conflict arising afterinstructions have been accepted must be notifiedimmediately to your client. In such circumstances thesame reporting procedures and considerations as perPS 3.4(e) above should apply. This paragraph (PS 3.5)does not apply to Single Joint Experts (see instead PS8.7).

3.6 You shall not undertake expert witnessappointments on any forms of conditional or success-based arrangement including when those instructingyou are engaged on such a basis (see PS 10Conditional fees).

3.7 You must confirm to your prospective client inwriting and in good time whether or not you accept theprospective client’s instructions. Your acceptanceshould cover your terms of engagement (including thebasis on which your fees will be charged) and anyspecific mandates given as to important or contentiousmatters.

3.8 You must then ensure that such documents,together with communications from your client, arekept by you as a proper record of your instructions.Any change or supplement to the terms that may bemade from time to time should be added to yourrecords.



3.9 Transparency of instructions is important andtribunals may allow cross examination of expertwitnesses about their instructions if there arereasonable grounds to consider that the statements ofan expert witness or the expert witness report may beinaccurate or incomplete. The omission from thestatement of ‘off the record’ oral instructions is notappropriate.

3.10 Expert witnesses must neither express an opinionoutside the scope of their field of expertise, nor acceptany instructions to do so.

PS 4 Inspections

4.1 Where any inspection of any property or facility is,in your view, required, it must always, wherereasonably possible, be carried out to the extentnecessary to produce an opinion that is professionallycompetent. This should have regard to its purpose andthe circumstances of the case.

4.2 When such an inspection is not undertaken, or theinspection falls short of what is required, this must bestated and an explanation of the problems andimplications for the evidence identified.

PS 5 Reports and oral evidence

5.1 In most tribunals, expert witnesses are usuallyrequired to present their evidence in the form of awritten report unless directed to the contrary. This isusually referred to as an ‘expert witness report’, but incertain tribunals or circumstances, other terminologymay be used and you should be careful to check withthose instructing you.

5.2 Expert evidence should maintain professionalobjectivity and impartiality at all times, should considerall material facts and should be the independentproduct of the expert witness uninfluenced by thepressures of litigation. An expert witness should notassume the role of an advocate except in limitedcircumstances where such a joint role is appropriate.

5.3 The role of expert witnesses is to assist thetribunal by providing objective, unbiased opinions onmatters within their expertise and make it clear when aquestion or issue falls outside of their expertise or ifthey are not able to reach a definite opinion; forexample because they have insufficient information.

5.4 In providing a written expert witness report to belodged before a tribunal you must comply with anyrules, orders or directions and protocols of the tribunalto which the expert witness report is to be presented. It

should usually be addressed to the tribunal and not tothe party from whom the expert has receivedinstructions. The content and extent of expertwitnesses’ reports should be governed by the scope oftheir instructions, general obligations and overridingduty to the tribunal. You must:

(a) Give details of your qualifications and relevantexperience, knowledge and expertise(commensurate in detail with the nature andcomplexity of the case). It is advised that thespecific experience that is relevant to the case isset out in the body of the expert witness reportwith general experience, background and a wide-ranging curriculum vitae (CV) attached as anappendix.

(b) State the substance of all material instructions(whether written or oral).

(c) Consider all matters material to the issue anddispute, upon which you are required to give anopinion, including matters adverse to your client’scase.

(d) Make it clear when a question falls outside yourexpertise.

(e) Where tests of a scientific or technical naturehave been carried out, state the methodologyused, by whom the tests were undertaken andunder whose supervision.

(f) Give details of any literature or other materialwhich you have relied on in making the expertwitness report, including the opinions of others.

(g) State if any other individual or party has carriedout any examination, measurement, test,experiment or survey that you have used for theexpert witness report; their relevant experience,knowledge, expertise and qualifications; thenature, extent and methodology of the activity;and whether or not the work was carried outunder your supervision. Explain any implicationon the evidence.

(h) Clearly state all material facts and make clearwhich of the facts stated are within your ownknowledge, including those that might detractfrom the opinion as given, and state allassumptions upon which your opinion andreasoning are based. You must indicate where, inwhat way and why, an opinion is provisional, ifyou consider that further information is requiredor if, for whatever reason, you believe a final andunqualified opinion cannot be expressed.

(i) Distinguish between those facts that you believeto be true and those you have assumed(specifying those you have been instructed toassume).


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(j) When addressing questions of fact and opinion,keep the two separate and discreet.

(k) Where there is a range of opinions on the mattersdealt with in the expert witness report:

(i) summarise the ranges of opinions and theirsources; and

(ii) give reasons for your own opinion.

(l) When there are material facts in dispute, expressseparate opinions on each hypothesis putforward and show no preference unless it ispossible to demonstrate that one set of facts isimprobable or less probable and fully explain thereasoning.

(m) If you are not able to give an opinion withoutqualification, such qualification must beidentified, clearly stated and explained.

(n) Include at the end of the expert witness report asummary of the conclusions.

(o) Verify your expert witness report by including asigned statement of truth at the end of the reporttogether with the declaration set out below andany other requirements of the tribunal. You mustprint your name clearly beneath the signatureinclude all professional designatory letters andthe date.

(p) The requirements for statements of truth maydiffer between jurisdictions and tribunals. A triedand tested example is that set out in the CivilProcedure Rules (CPR) in Practice Direction 35.This practice statement has included in thestatement of truth the same wording so as toavoid duplication in the courts of England andWales. The following wording to verify the expertwitness report by a statement of truth must beadopted by all chartered surveyors acting in thecapacity of an expert witness, in the followingform:

(i) Statement of truth

‘I confirm that I have made clear which facts andmatters referred to in this report are within myown knowledge and which are not. Those that arewithin my own knowledge I confirm to be true.The opinions I have expressed represent my trueand complete professional opinions on thematters to which they refer.’

Crown copyright material is reproduced under theOpen Government Licence v2.0 for public sectorinformation: www.nationalarchives.gov.uk/doc/open-government-licence/

(ii) Declaration

1 ‘I confirm that my report has drawn attention toall material facts which are relevant and haveaffected my professional opinion.

2 I confirm that I understand and have compliedwith my duty to the [specify the tribunal*] as anexpert witness which overrides any duty to thoseinstructing or paying me, that I have given myevidence impartially and objectively, and that I willcontinue to comply with that duty as required.[*The reference used may vary, as appropriate tothe particular forum.]

3 I confirm that I am not instructed under anyconditional or other success-based feearrangement.

4 I confirm that I have no conflicts of interest.

5 I confirm that I am aware of and have compliedwith the requirements of the rules, protocols anddirections of the [specify the tribunal].

6 I confirm that my report complies with therequirements of RICS – Royal Institution ofChartered Surveyors, as set down in the RICSpractice statement Surveyors acting as expertwitnesses’.

5.5 The scope of PS 5.4 covers written reports. Inrelation to expert evidence to be given orally, where nowritten expert witness report has been lodged orsubmitted to the tribunal, you must at the outsetdeclare to the tribunal your expertise and capacity asan expert witness, your understanding of your duty tothe tribunal and that the expert evidence you givecomplies with the requirements of the tribunal and thispractice statement.

5.6 In the event of any departure from therequirements of this practice statement, this should beoutlined to the tribunal at the earliest opportunity andin accordance with any procedures or arrangementsagreed in advance.

PS 6 Amending the contents of writtenreports

6.1 If after disclosure of your expert witness report youidentify a material inaccuracy or omission, or have achange of opinion on any matter as a result of anexchange of questions or following agreementsrequired at meetings between experts or where furtherevidence or documentation is disclosed, you must,without delay and in writing, notify the need to makechanges and the reasons for such changes, to:

8 RICS Practice statement, England, Wales and Northern Ireland


(a) those instructing you

(b) other parties to the dispute (through legalrepresentatives, if any); and

(c) where appropriate, the tribunal.

6.2 You may be invited to amend or expand an expertwitness report to ensure accuracy, consistency,completeness, relevance and clarity. You mustdisregard any suggestions or alterations that do notaccord with your true opinions, or distort them.

(a) Where you change your opinion following ameeting of experts, a simple and datedaddendum or memorandum to that effect shouldbe prepared and issued.

(b) Where you significantly alter your opinion, as aresult of new evidence or because evidence onwhich you relied has become unreliable or for anyother reason, you should amend your reports toreflect that fact. Amended expert witness reportsshould include reasons for amendments and insuch circumstances those instructing expertwitnesses should inform the other relevant partiesas soon as possible of any change of opinion.

PS 7 Agreeing facts and resolvingdifferences

7.1 As an expert witness you may be instructed tocommunicate with the other party in an attempt toagree facts and to clarify, narrow and resolve thedifferences between parties. This may require a jointinspection. You may in any event be ordered to do thisby the tribunal. You must follow any lawful order ordirection of the tribunal, notwithstanding any directiveby a client to the contrary.

7.2 Where, for any reason, you are unable to complywith any order or direction of the tribunal concerningthe matters set out in PS 7.1, you must as soon aspracticable:

(a) prepare a written record of the reason for suchnon-compliance; and

(b) give copies of that record to your client and tothe tribunal.

7.3 Even where you have not been instructed tocommunicate with the other party or so ordered by thetribunal, or where the tribunal does not specify anyrequirements in regard to the manner or scope of suchcommunications, you must raise with your client thepossible advantages, disadvantages andappropriateness of:

(a) making such communications at as early a stageas possible

(b) identifying with counterpart expert witnesses theissues in dispute, the reasons for any differencesof opinion and the actions that might be taken toresolve outstanding issues between parties

(c) preparing a statement for the tribunal showing:

(i) those facts and issues that are agreed; and

(ii) those facts and issues that have not beenagreed and the reasons for anydisagreement on any issue.

PS 8 Single Joint Expert (SJE)

8.1 The objective of a tribunal in appointing a SingleJoint Expert (SJE) is for each case to be dealt withjudicially according to the circumstances, so that allparties are on an equal footing and costs areminimised, at the same time ensuring that all mattersare dealt with expeditiously and fully.

8.2 So as to achieve these objectives, the parties to adispute are required to assist the tribunal asappropriate and together with the SJE must submit toactive case management and follow the directions ofthe tribunal as quickly and efficiently as possible.

8.3 The SJE, in complying with the objectives of thetribunal, must also be familiar with the specificrequirements of any particular tribunal and the rules asstated.

8.4 An SJE is restricted to only giving evidence that isreasonably required of them on matters within theirexpertise to help the tribunal resolve the subjectproceedings. This duty overrides any obligation to anyparty to the dispute.

8.5 The SJE should therefore be clear on thefollowing points when accepting an instruction as anSJE:

(a) the subject matter of instructions

(b) the need for expert evidence and its extent

(c) the issues arising that require to be addressed

(d) the presentation of the evidence

(e) the release of the expert’s evidence to theparties; and

(f) the requirement that opinions must only reflectthe SJE’s areas of expertise.

8.6 Some tribunals may retain powers to direct theparties to a dispute to provide appropriate informationto the SJE. The SJE must ensure they are aware ofsuch obligations and the arrangements for suchinformation to be provided to them so that they maysuccessfully undertake this role.

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8.7 Some tribunals allow the expert witness to directquestions to them where the expert is unable to secureappropriate instructions from their client or wheninstructions are passed to the expert by either sidewhich the expert considers to be improper or out oftime. The rules of the tribunal must be followed at alltimes and it is usually preferable to secure answerswithout such references to the tribunal as this option,where permitted, should be used only as a last resort.

8.8 The SJE must be careful to ensure they havedisclosed any conflicts of interest or involvement withthe parties or the case as well as confirming theirability to discharge their instructions in an appropriatemanner and timescale, having regard to any rules ofthe tribunal and set timetable.

8.9 Difficulties may arise in the SJE receiving clearinstructions from the parties to the dispute, in whichcase the SJE must establish what opportunities orrules exist so as to ask for or secure appropriate andclear instruction.

8.10 Where other difficulties arise or where furtherinstructions are required, in the event that these are notagreed between the parties, the SJE should make awritten request to the tribunal although, subject to therules of tribunal, this will again normally only be a lastresort. The SJE should notify the parties in reasonabletime before taking such action.

8.11 The SJE should bring to the attention of theparties to the dispute, and as appropriate the tribunal,any involvement arising after appointment that maygive rise to a conflict of interest or the perception ofpotential bias in the eyes of the public. This is toensure that the circumstances arising do notundermine the findings and judgment of the tribunal.

8.12 SJEs should not attend any meeting orconference that is not a joint one unless all partieshave agreed in writing or the tribunal has directed thatsuch a meeting may be held and who is to beresponsible for the fees and costs.

PS 9 Advocacy and expert witness roles

9.1 The roles of advocate and expert witness are verydifferent, requiring distinct skills, and cannot normallybe carried out by the same person. However, in certaincircumstances some tribunals, usually lower ordertribunals, do allow surveyors to act in the same caseboth as surveyor-advocate and as expert witnesswhere it is in the public interest, and where notallowing such a dual role would limit access to justiceby certain parties (see also the RICS practicestatement and guidance note Surveyors acting as

advocates). This is known as acting ‘in a dual role’. Youshould only act in a dual role where:

(a) neither the rules nor the customs of the particulartribunal prohibit you from so acting; and

(b) other relevant factors make it appropriate (forexample, the disproportionality of retaining twopersons in separate roles) and where it is in thepublic interest to do so by providing access tojustice which otherwise may not be available.

9.2 However, where you intend, or are invited, to act ina dual role as surveyor-advocate and as expertwitness, you must:

(a) having regard to 9.1 above, consider bothwhether it is permissible to do so (see also PS3.2) and also whether it is appropriate; and

(b) promptly communicate to your client the resultsof such considerations, setting out in writing thelikely advantages and disadvantages, as you seethem, of acting in a dual role in the particularcircumstances of the case, so as to enable theclient to decide whether you should indeed act insuch a dual role. In such communication youmust detail:

(i) the likely impact on your impartiality asexpert witness, and any possible impact interms of the perception of that impartialityby others (for example, the weighting givento your opinion evidence); and any possibleimpact on your advocacy submissions

(ii) whether or not you will be able to fulfil bothroles properly with professional integrity atall times; and

(iii) whether or not it would be disproportionatein all the circumstances, or otherwise in theclient’s best interests, for a separate personto be retained to undertake one of the roles.

9.3 Having complied with PS 9.2 above, you may onlyact in both roles if the client instructs you so to act andthe tribunal so permits.

9.4 Where you confirm instructions to act in such adual role, you must advise the tribunal of this statusand clearly distinguish between those two roles at alltimes, whether in oral hearings or in writtenpresentations.

9.5 Surveyors, when acting as advocates, are requiredto comply with the RICS practice statement andguidance note Surveyors acting as advocates.



PS 10 Conditional fees

10.1 You should not undertake expert witnessappointment on any form of conditional or othersuccess-based arrangement including where thoseinstructing you are engaged on such a basis.

10.2 It is inappropriate to be remunerated by way of aconditional fee arrangement when acting as an expertwitness but it may be an appropriate fee basis whenacting as an advocate. When acting in a dual role asexpert witness and advocate, where permitted in lowertribunals, a conditional fee arrangement may beacceptable because it will be seen as attached to therole of advocate. Such a dual role improves access tojustice by reducing costs and therefore a conditionalfee payment can be supported in these limited andstrict circumstances.

10.3 When acting in a dual role and where aconditional fee arrangement has been agreed, thismust be declared to the tribunal.

10.4 It is unlikely that a dual role will be permitted inhigher tribunal formats and consequently previouslyagreed conditional fees when the surveyor hasappeared in a lower tribunal will, at the point oftransferring to the superior or higher tribunal, need tobe commuted and replaced by an hourly rate or fixedfee arrangement.


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Appendix

This appendix forms a part of both the practicestatement and guidance note of Surveyors acting asexpert witnesses. The following are short definitions ofsome terms from the practice statement and guidancenote. In certain circumstances other terms may beused. Members are advised to refer to a legaldictionary (or legal textbooks), and/or to relevant rules,directions and procedures of the tribunal in question.Members may also find it useful to view Appendix B:Definitions in the RICS practice statement andguidance note Surveyors acting as advocates.

Case manager: a person who, acting on behalf of aparty, is responsible for the general conduct,management and administration of the case,marshalling and coordinating that party’s team (if any)and liaising as appropriate with the tribunal andopposing party.

Conditional fee: this term refers to any arrangementwhere remuneration – however fixed or calculated – isto be made conditional upon the outcome ofproceedings or upon the nature of evidence given.Other labels in common use are ‘incentive fee’,‘speculative fee’, ‘success fee’, ‘success-related fee’,‘performance fee’, ‘no win, no fee’ and ‘contingencyfee’.

CPR: the Civil Procedure Rules (known as CPR) can befound at www.justice.gov.uk/civil/procrules_fin/index.htm. This is the set of rules governing theprocedure of the several courts in England, Wales andNorthern Ireland. These procedural rules aresupplemented by Protocols, Pre-Action Protocols,Practice Directions and court guides. The objectives ofthe CPR are to make access to justice cheaper, quickerand fairer. Some parts of the CPR apply to action takenbefore proceedings are issued and so the scope of theCPR should be considered in respect of any matterlikely to be litigious.

Direction: a requirement laid down by a tribunal.

Disclosure: the production and inspection ofdocuments in accordance with applicable rules and/ordirections of a tribunal. Different rules apply in theScottish courts where documents can be recoveredfrom another party (known as the ‘haver’) using‘commission and diligence’.

Evidence: this may be evidence of fact, expert(opinion) evidence or hearsay evidence. The weight to

be attached to evidence by a tribunal will depend onvarious factors, the importance of which may vary fromcase to case.

Expert witness: a witness called by a tribunal to giveexpert opinion evidence by virtue of experience,knowledge and expertise of a particular area beyondthat expected of a layperson. The overriding duty ofthe expert witness is to provide independent, impartialand unbiased evidence to the tribunal – covering allrelevant matters, whether or not they favour the client –to assist the tribunal in reaching its determination.

Hearsay evidence: evidence by way of the oralstatements of a person other than the expert witnesswho is testifying and/or by way of statements indocuments, offered to prove the truth of what is stated.See also the Civil Evidence (Scotland) Act 1988 and theCivil Evidence Act 1995. In arbitral proceedings,subject to any agreement between the parties or priordirection given by the arbitrator, hearsay will beadmissible, subject to notice being given to the otherparty.

Legal professional privilege (sometimes called ‘legaladvice privilege’): legal professional privilege attachesto, and protects:

+ communications (whether written or oral) madeconfidentially

+ passing between a lawyer (acting in his/herprofessional legal capacity) and his/her client; and

+ solely for the purpose of giving or obtaining legaladvice.

Licensed Access: RICS members are currentlypermitted by the General Council of the Bar of Englandand Wales to instruct a barrister direct, without theservices of a solicitor, for certain purposes. Thesurveyor should be experienced in the field to whichthe referral relates. The regime in England and Waleswas formerly known as Direct Professional Access(DPA). The latest edition of the RICS guidance noteDirect professional access to barristers is currentlyunder review. RICS members are also able to instructcounsel direct under the terms of the Scottish DirectAccess Rules and, in Northern Ireland, under DirectProfessional Access. The relevant Bar Councils (ofEngland and Wales; and Northern Ireland) or theFaculty of Advocates in Scotland can be consulted forfurther advice.



Litigation privilege: where litigation is in reasonablecontemplation or in progress, this protects:

+ written or oral communications made confidentially

+ between either a client and a lawyer, OR either ofthem and a third party

+ where the dominant purpose is for use in theproceedings; or

+ either for the purpose of giving or getting advice inrelation to such proceedings, or for obtainingevidence to be used in such proceedings.

The privilege applies to proceedings in the High Court,County Court, employment tribunals and, where it issubject to English procedural law, arbitration. Withregard to other tribunals, the position is less clear.

Negotiator: a person who negotiates a deal (ofproperty or asset) or solution. Also, in disputeresolution, a person who seeks to negotiate theresolution of the dispute as best he or she may. Anegotiator has no involvement in this role with atribunal. A negotiator’s role is markedly different to thatof an advocate, expert witness, case manager orwitness of fact.

Representation(s): this term may, depending on thecircumstances and context, be used to refer to one ormore of:

+ a statement of case

+ an assertion of fact(s)

+ expert opinion evidence; and

+ an advocacy submission.

Representations may be made orally or in writing.

Scott Schedule: a document setting out, in tabularform, the items in dispute and containing (or allowingto be added) the contentions or agreement of eachparty (named after a former Official Referee).

Single Joint Expert (SJE): an expert witnessappointed pursuant to an order of a court, andinstructed jointly by parties to a dispute. Thoughrelatively rare in Scotland, courts in that jurisdiction canappoint their own expert.

Submission(s): the presentation by way of advocacy ofa matter in dispute to the judgment of a tribunal. Theterm is occasionally used loosely in the surveyingcommunity to refer to evidence of fact or expertopinion evidence presented, or to a mix of such expertopinion evidence and advocacy; such usage is oftenmisplaced.

Surveyor-advocate: a person who presents to thetribunal a client’s properly arguable case as best as heor she may on the evidence and facts available; aspokesperson for a client who, subject to anyrestrictions imposed by the surveyor’s duty to thetribunal, must do for his/her client all that the clientmight properly do for him or herself if he or she could.Sometimes also referred to as party representative(although this term is occasionally loosely also used torefer to the surveyor as a negotiator). The advocacyrole is markedly different from the role of an expertwitness or a negotiator (see below).

Tribunal: see definition in Preamble to the practicestatement.

‘Without prejudice’: the without prejudice rule willgenerally prevent statements made in a genuineattempt to settle an existing dispute, whether made inwriting or orally, from being put before a court asevidence of admissions against the interest of the partywhich made them. There are a number of establishedexceptions to the rule.

Witness of fact: a person who, usually under oath orsolemn affirmation, gives evidence before a tribunal ona question of fact.


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